(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as title='definition'>text_and_data_mining.
Text and data mining makes the processing of large amounts of information with a view to gaining new knowledge and discovering new trends possible.
Text and data mining technologies are prevalent across the digital economy; however, there is widespread acknowledgment that title='definition'>text_and_data_mining can, in particular, benefit the research community and, in so doing, support innovation.
Such technologies benefit universities and other title='definition'>research_organisations, as well as title='definition'>cultural_heritage_institutions since they could also carry out research in the context of their main activities. However, in the Union, such organisations and institutions are confronted with legal uncertainty as to the extent to which they can perform title='definition'>text_and_data_mining of content.
In certain instances, title='definition'>text_and_data_mining can involve acts protected by copyright, by the sui generis database right or by both, in particular, the reproduction of works or other subject matter, the extraction of contents from a database or both which occur for example when the data are normalised in the process of title='definition'>text_and_data_mining.
Where no exception or limitation applies, an authorisation to undertake such acts is required from rightholders.
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(18) In addition to their significance in the context of scientific research, title='definition'>text_and_data_mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works or other subject matter falling outside the scope of the mandatory exception provided for in this Directive for title='definition'>text_and_data_mining for the purposes of scientific research and of the existing exceptions and limitations provided for in Directive 2001/29/EC.
At the same time, consideration should be given to the fact that users of title='definition'>text_and_data_mining could be faced with legal uncertainty as to whether reproductions and extractions made for the purposes of title='definition'>text_and_data_mining can be carried out on lawfully accessed works or other subject matter, in particular when the reproductions or extractions made for the purposes of the technical process do not fulfil all the conditions of the existing exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.
In order to provide for more legal certainty in such cases and to encourage innovation also in the private sector, this Directive should provide, under certain conditions, for an exception or limitation for reproductions and extractions of works or other subject matter, for the purposes of title='definition'>text_and_data_mining, and allow the copies made to be retained for as long as is necessary for those title='definition'>text_and_data_mining purposes.
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(44) Mechanisms of collective licensing with an extended effect allow a collective management organisation to offer licences as a collective licensing body on behalf of rightholders, irrespective of whether they have authorised the organisation to do so. Systems built on mechanisms such as extended collective licensing, legal mandates or presumptions of representation, are a well-established practice in several Member States and can be used in different areas. A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works or other subject matter.
Member States should, therefore, be able to rely on solutions allowing collective management organisations to offer licences covering a potentially large number of works or other subject matter for certain types of use, and to distribute the revenue resulting from such licences to rightholders, in accordance with Directive 2014/26/EU.
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(45) Given the nature of some uses, together with the usually large amount of works or other subject matter involved, the transaction cost of individual rights clearance with every rightholder concerned is prohibitively high.
As a result, it is unlikely that, without effective collective licensing mechanisms, all the transactions in the areas concerned that are required to enable the use of such works or other subject matter would take place.
Extended collective licensing by collective management organisations and similar mechanisms can make it possible to conclude agreements in those areas where collective licensing based on an authorisation by rightholders does not provide an exhaustive solution for covering all works or other subject matter to be used.
Such mechanisms complement collective management of rights based on individual authorisation by rightholders, by providing full legal certainty to users in certain cases. At the same time, they provide an opportunity to rightholders to benefit from the legitimate use of their works.
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(61) In recent years, the functioning of the online content market has gained in complexity.
Online content-sharing services providing access to a large amount of copyright-protected content uploaded by their users have become a main source of access to content online.
Online services are a means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models. However, although they enable diversity and ease of access to content, they also generate challenges when copyright-protected content is uploaded without prior authorisation from rightholders. Legal uncertainty exists as to whether the providers of such services engage in copyright-relevant acts, and need to obtain authorisation from rightholders for content uploaded by their users who do not hold the relevant rights in the uploaded content, without prejudice to the application of exceptions and limitations provided for in Union law.
That uncertainty affects the ability of rightholders to determine whether, and under which conditions, their works and other subject matter are used, as well as their ability to obtain appropriate remuneration for such use.
It is therefore important to foster the development of the licensing market between rightholders and title='definition'>online_content-sharing_service_providers. Those licensing agreements should be fair and keep a reasonable balance between both parties. Rightholders should receive appropriate remuneration for the use of their works or other subject matter.
However, as contractual freedom should not be affected by those provisions, rightholders should not be obliged to give an authorisation or to conclude licensing agreements.
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(62) Certain title='definition'>information_society_services, as part of their normal use, are designed to give access to the public to copyright-protected content or other subject matter uploaded by their users. The definition of an title='definition'>online_content-sharing_service_provider laid down in this Directive should target only online services that play an important role on the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences. The services covered by this Directive are services, the main or one of the main purposes of which is to store and enable users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit therefrom, either directly or indirectly, by organising it and promoting it in order to attract a larger audience, including by categorising it and using targeted promotion within it.
Such services should not include services that have a main purpose other than that of enabling users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit from that activity.
The latter services include, for instance, electronic communication services within the meaning of Directive (EU) 2018/1972 of the European Parliament and of the Council (14), as well as providers of business-to-business cloud services and cloud services, which allow users to upload content for their own use, such as cyberlockers, or online marketplaces the main activity of which is online retail, and not giving access to copyright-protected content.
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(63) The assessment of whether an title='definition'>online_content-sharing_service_provider stores and gives access to a large amount of copyright-protected content should be made on a case-by-case basis and should take account of a combination of elements, such as the audience of the service and the number of files of copyright-protected content uploaded by the users of the service.
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